Fifteen years ago I was the ethicist involved in a case of a 20-year-old woman who had a stroke, and who was discovered in the emergency room to be 16 weeks pregnant on the same day she was declare...

This issue’s “Legal Briefing” column covers recent legal developments involving total brain failure. Death determined by neurological criteria (DDNC) or “brain death” has been legally established for decades in the United States. But recent conflicts between families and hospitals have created some uncertainty. Clinicians are increasingly unsure about the scope of their legal and ethical treatment duties when families object to the withdrawal of physiological support after DDNC. This issue of JCE includes a thorough analysis of (...) one institution’s ethics consults illustrating this uncertainty. This experience is not unique. Hospitals across the country are seeing more DDNC disputes. Because of the similarity to medical futility disputes, some court cases on this topic were reviewed in a prior “Legal Briefing” column. But a more systematic review is now warranted. I categorize recent legal developments into the following nine categories: 1. History of Determining Death by Neurological Criteria2. Legal Status of Determining Death by Neurological Criteria3. Legal Duties to Accommodate Family Objections4. Protocols for Determining Death by Neurological Criteria5. Court Cases Seeking Physiological Support after DDNC6. Court Cases Seeking Damages for Intentionally Premature DDNC7. Court Cases Seeking Damages for Negligently Premature DDNC8. Court Cases Seeking Damages for Emotional Distress9. Pregnancy Limitations on DDNC. (shrink)

The appearance of chronic brain dead patients who can undergo puberty and gestate pregnancies has shaken the confidence that brain death determination once enjoyed. Based on the bio-philosophical concept of loss of integration, whole brain death became the accepted standard with the widespread implementation of the Uniform Determination of Death Act. Unfortunately, the clinical criteria do not actually test the whole brain. Retrospective data shows that roughly half of these chronic brain dead (...) patients have persistent hypothalamic functioning and are therefore not whole brain dead. The Uniform Law Commission sought to change the determination of brain death to align with the current clinical criteria. Rather than gerrymandering death determination, the criteria for brain death should be strengthened. Such a change could respect the intrinsic human dignity of the patient and promote prudential certitude. (shrink)

Drawing on a recent case report of a pregnant, brain‐dead woman who gave birth to a healthy child after over seven months of intensive care treatment, this essay rejects the established doctrine in medicine that brain death constitutes the biological death of the human being. The essay describes three policy options with respect to determination of death and vital organ transplantation in the case of patients who are irreversibly comatose but remain biologically alive.

When a Texas hospital continued ventilator support for a pregnant patient who met the neurological criteria for the determination of death, it acted against the wishes of the patient‘s husband and other family members. The hospital stated that its treatment decision was required under the Texas Advance Directives Act, in particular the “pregnancy exclusion” that instructs providers to continue life-sustaining treatment as long as the patient is pregnant, notwithstanding contrary instructions in the patient‘s living will or from the (...) patient‘s surrogate decision-maker. Contrary to the hospital‘s stated position, however, neither the literal words of the pregnancy exclusion nor the Advance Directives Act read as a whole requires continued ventilator support once a pregnant patient is determined to be brain dead. (shrink)

The first reported case of postmortem sperm retrieval occurred in 1978, involving a man who became brain dead after a motor vehicle accident and whose wife requested removal of his sperm so that she could be artificially inseminated. Physicians performed the retrieval by surgically excising the ducts that transport sperm from the testes and removing sperm from them. Since that time, several other methods for retrieving sperm from such patients have been reported, and at least 141 cases have been (...) documented in which requests were made for removal of sperm from men who were dead or irreversibly unconscious. Moreover, there have been several reports of pregnancies and births resulting from assisted reproduction using sperm retrieved in such cases. (shrink)

This paper explores the role of moral uncertainty in explaining the morally disruptive character of new technologies. We argue that existing accounts of technomoral change do not fully explain its disruptiveness. This explanatory gap can be bridged by examining the epistemic dimensions of technomoral change, focusing on moral uncertainty and inquiry. To develop this account, we examine three historical cases: the introduction of the early pregnancy test, the contraception pill, and brain death. The resulting account highlights what (...) we call “differential disruption” and provides a resource for fields such as technology assessment, ethics of technology, and responsible innovation. (shrink)

Feminist bioethicists of a variety of persuasions discuss the 2013 case of Marlise Munoz, a pregnant woman whose medical care was in dispute after she became brain dead.

D. Alan Shewmon has advanced a well-documented challenge to the widely accepted total brain death criterion for death of the human being. We show that Shewmon's argument against this criterion is unsound, though he does refute the standard argument for that criterion. We advance a distinct argument for the total brain death criterion and answer likely objections. Since human beings are rational animals – sentient organisms of a specific type – the loss of the radical (...) capacity for sentience involves a substantial change, the passing away of the human organism. In human beings total brain death involves the complete loss of the radical capacity for sentience, and so in human beings total brain death is death. (shrink)

At its inception, “brain death” was proposed not as a coherent concept but as a useful one. The 1968 Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death gave no reason that “irreversible coma” should be death itself, but simply asserted that the time had come for it to be declared so. Subsequent writings by chairman Henry Beecher made clear that, to him at least, death was essentially a (...) social construct, and society could define it however it pleased. The first widely endorsed attempt at a philosophical justification appeared thirteen years later, with a report from the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research and a seminal paper by James Bernat, Charles Culver, and Bernard Gert, which introduced the insightful tripartite scheme of concept, criterion, and tests for death. Their paper proposed that the correct concept of death is the “permanent cessation of functioning of the organism as a whole,” which tenuously remains the mainstream concept to this day. In this essay, I focus on this mainstream concept, arguing that equating brain death with death involves several levels of incoherence: between concept and criterion, between criterion and tests, between tests and concept, and between all of these and actual brain death praxis. (shrink)

This commentary considers the viability of ovarian tissue cryopreservation (OTC) in the case of an adult who qualified for brain death. Although there has been some success with OTC in achieving pregnancy when the tissue is reimplanted in the original donor, attempting OTC in the case under discussion would have not been medically feasible.

The Japanese Transplantation Law is unique among others in that it allows us to choose between "brain death" and "traditional death" as our death. In every country 20 to 40 % of the popularion doubts the idea of brain death. This paper reconsiders the concept, and reports the ongoing rivision process of the current law. Published in Hastings Center Report, 2001.

"Whole brain death" (neurological death) is well-established as a legal standard of death across the country. Recently, New Jersey became the first state to enact a statute recognizing a personal religious exemption (a conscience clause) protecting the rights of those who object to neurological death. The Act also mandates adoption through the regulatory process of uniform and up-to-date clinical criteria for determining neurological death.

When does a human being cease to exist? For millennia, the answer to this question had remained largely unchanged: death had been diagnosed when heartbeat and breathing were permanently absent. Only comparatively recently, in the 1950s, rapid developments in intensive-care medicine called into question this widely accepted criterion. What had previously been deemed a permanent cessation of vital functions suddenly became reversible. -/- A new criterion of death was needed. It was suggested that the destruction of the (...) class='Hi'>brain could indicate the death of the organism in the presence of external life support. Soon the so-called brain death became the new worldwide standard. In recent years, however, doubts about this neurological criterion have been growing. Is brain death really our death? -/- This is the question that this thesis seeks to answer. To this end, we shall connect the medical debate about the definition of death to the philosophical debate about personal identity. While we will find that the destruction of its brain does in fact not correspond to an organism’s death, we shall also ask whether the assumption that we are essentially organisms is correct. May brain death be the ceasing to exist of a different entity? -/- Substituting clinical case reports and considerations about human physiology for the use of thought experiments, the thesis takes a novel and philosophically unconventional approach to the problem of what we essentially are. We shall analyse various pathological conditions and their respective effects on the bodily and mental characteristics of our existence. We will conclude that brain death is indeed our death – but for reasons entirely different from those cited in the original justification of this criterion. (shrink)

This chapter contains sections titled: The Concept of Brain Death and its Appeal A Critique of Brain Death What Kind of Entity Are We? Persistent Vegetative State References Further Reading.

For decades, physicians, philosophers, theologians, lawyers, and the public considered brain death a settled issue. However, a series of recent cases in which individuals were declared brain dead yet physiologically maintained for prolonged periods of time has challenged the status quo. This signals a need for deeper reflection and reexamination of the underlying philosophical, scientific, and clinical issues at stake in defining death. In this paper, I consider four levels of philosophical inquiry regarding death: the (...) ontological basis, actual states of affairs, epistemological standards, and clinical criteria for brain death. I outline several candidates for the states of affairs that may constitute death, arguing that we should strive for a single, unified ontological definition of death as a loss of integrated functioning as a unified organism, while acknowledging that two states of affairs may satisfy this concept. I argue that the clinical criteria for determining whole-brain death should be bolstered to meet the epistemic demand of sufficient certainty in defining death by adding indicators of cerebro-somatic dis-integration to the traditional triad of loss of consciousness, loss of brainstem function, and absence of confounding explanations. (shrink)

Brain death, or the determination of death by neurological criteria, has been described as a legal fiction. Legal fictions are devices by which the law treats two analogous things (in this case, biological death and brain death) in the same way so that the law developed for one can also cover the other. Some scholars argue that brain death should be understood as a fiction for two reasons: the way brain (...) class='Hi'>death is determined does not actually satisfy legal criteria requiring the permanent cessation of all brain function, and brain death is not consistent with the biological conception of death as involving the irreversible cessation of the functioning of an organism as a whole. Critics counter that the idea that brain death is a legal fiction is deceptive and undemocratic. I will argue that diagnosing brain death as a hidden legal fiction is a helpful way to understand its historical development and current status. For the legal‐fictions approach to be ethically justifiable, however, the fact that brain death is a legal fiction not aligned with the standard biological conception of death must be acknowledged and made transparent. (shrink)

For hundreds of years, death had been defined by cardiopulmonary criteria. When heart and respiratory functions were permanently absent, doctors declared their patients dead. Three developments in intensive care medicine called into question these widely-accepted criteria, however: the advent of positive pressure ventilation and the promotion of cardiopulmonary resuscitation, both in the early 1950s, and the first successful heart transplantation in 1967. What had previously been diagnosed as the permanent absence of vital functions, suddenly became reversible. Not only could (...) doctors replace a defective heart with a functioning transplant; patients could also be kept oxygenated in the total absence of spontaneous respiratory function. The traditional boundaries between life and death became blurred. Patients for whom there was not the remotest possibility of regaining consciousness following massive brain damage continued to consume valuable medical resources. Moreover, their organs could not be procured for transplantation. Were those patients still alive or could the ventilators be switched off? A criterion suited to indicate a patient’s death despite the provision of external life support was needed. In 1968 an ad hoc committee of the Harvard Medical School published the first comprehensive definition of what would soon become the new clinical standard: brain death. The brain bears a special relation to other organs; it directs bodily functions without carrying them out. When the brain is destroyed, it was argued, this control mechanism is irreversibly dysfunctional, so that the organism becomes unable to maintain its vital functions, loses its somatic unity and, consequently, ceases to exist. This neurological criterion has been controversial ever since its introduction. Whether brain death is indeed death is what I shall be investigating in this thesis. I will be asking three main questions: What are we? Is brain death the death of an organism? Is brain death the death of a psychological being? The question of personal identity and the question of the appropriate definition of death are intimately related. Only when we have determined what kind of entity we essentially are can we specify what conditions must apply for this entity to persist or to cease to exist. I shall argue that we are essentially psychological beings, which entails that our death is distinct from the death of our organisms. Hence, we need two different criteria – one for the death of each entity. I shall try to establish whether brainstem death and whole-brain death correspond to the irreversible cessation of organismic functioning. I will then determine by which criterion the death of a psychological being can be diagnosed. (shrink)

The biophilosophic justification for the idea that “brain death” is death needs to support two claims: that what dies in human death is a human organism, not merely a psychological entity distinct from it; that total brain failure signifies the end of the human organism as a whole. Defenders of brain death typically assume without argument that the first claim is true and argue for the second by defending the “integrative unity” rationale. Yet (...) the integrative unity rationale has fallen on hard times. In this article, I give reasons for why we should think of ourselves as organisms, and why the “fundamental work” rationale put forward by the 2008 President’s Council is better than the integrative unity rationale, despite persistent objections to it. (shrink)

The Islamic philosophical, mystical, and theological sub-traditions have each made characteristic assumptions about the human person, including an incorporation of substance dualism in distinctive manners. Advances in the brain sciences of the last half century, which include a widespread acceptance of death as the end of essential brain function, require the abandonment of dualistic notions of the human person that assert an immaterial and incorporeal soul separate from a body. In this article, I trace classical Islamic notions (...) of death and the soul, the modern definition of death as "brain death," and some contemporary Islamic responses to this definition. I argue that a completely naturalistic account of human personhood in the Islamic tradition is the best and most viable alternative for the future. This corporeal monistic account of Muslim personhood as embodied consciousness incorporates the insights of pre-modern Muslim thinkers yet rehabilitates their characteristic mistakes and thus has the advantages of neuroscientific validity and modern relevance in trans-cultural ethical discourse; it also helps to alleviate organ shortages in countries with majority Muslim populations, a serious ethical impasse of recent years. (shrink)

The controversy over brain death and the dead donor rule continues unabated, with some of the same key points and positions starting to see repetition in the literature. One might wonder whether some of the participants are talking past each other, not all debating the same issue, even though they are using the same words (e.g., “death”). One reason for this is the complexity of the debate: It’s not merely about the nature of human life and (...) class='Hi'>death. Interwoven into this debate are deep philosophical issues on realism, the normative/descriptive distinction, the relation of thought and language to the world, the mind–body problem, personhood, moral status, and the ethics of killing. There are also social and legal .. (shrink)

Since the introduction of a new criterion for determining death (i.e., the brain death criterion) in 1968, the research community has been embroiled in debates about whether this criterion should b...

In 1968, the Harvard criteria equated irreversible coma and apnea with human death and later, the Uniform Determination of Death Act was enacted permitting organ procurement from heart-beating donors. Since then, clinical studies have defined a spectrum of states of impaired consciousness in human beings: coma, akinetic mutism, minimally conscious state, vegetative state and brain death. In this article, we argue against the validity of the Harvard criteria for equating brain death with human (...) class='Hi'>death. Brain death does not disrupt somatic integrative unity and coordinated biological functioning of a living organism. Neurological criteria of human death fail to determine the precise moment of an organism’s death when death is established by circulatory criterion in other states of impaired consciousness for organ procurement with non-heart-beating donation protocols. The criterion of circulatory arrest 75 s to 5 min is too short for irreversible cessation of whole brain functions and respiration controlled by the brain stem. Brain -based criteria for determining death with a beating heart exclude relevant anthropologic, psychosocial, cultural, and religious aspects of death and dying in society. Clinical guidelines for determining brain death are not consistently validated by the presence of irreversible brain stem ischemic injury or necrosis on autopsy; therefore, they do not completely exclude reversible loss of integrated neurological functions in donors. The questionable reliability and varying compliance with these guidelines among institutions amplify the risk of determining reversible states of impaired consciousness as irreversible brain death. The scientific uncertainty of defining and determining states of impaired consciousness including brain death have been neither disclosed to the general public nor broadly debated by the medical community or by legal and religious scholars. Heart-beating or non-heart-beating organ procurement from patients with impaired consciousness is de facto a concealed practice of physician-assisted death, and therefore, violates both criminal law and the central tenet of medicine not to do harm to patients. Society must decide if physician-assisted death is permissible and desirable to resolve the conflict about procuring organs from patients with impaired consciousness within the context of the perceived need to enhance the supply of transplantable organs. (shrink)

1. Overview -/- 1.1 Main Divisions When, if ever, is it morally permissible to end the life of a human embryo or fetus, and why? As regards the first of these questions, there are extreme anti-abortion views, according to which abortion is prima facie seriously wrong from conception onwards – or at least shortly thereafter; there are extreme permissibility views, according to which abortion is always permissible in itself; and there are moderate views, according to which abortion is sometimes permissible, (...) and sometimes not. -/- Moderate views appeal to a variety of considerations in support of the view that abortion is sometimes justified, but these fall into four main categories. First, there are cases where the developing human is seriously defective in some way – perhaps such that it will not have a life that is worth living. Secondly, there are cases where continuation of pregnancy would involve serious risks to the life or health of the woman. Thirdly, there are moderate positions according to which the developing human initially does not have serious moral status, or a right to life, but acquires such status at some point before birth. Finally, it is often held that abortion is justified in the case of rape. -/- With the exception of the last consideration, moderate views assume that the moral status of the developing human is crucial with respect to the permissibility of abortion. Moreover, this is a natural assumption that was shared by all sides until the publication in 1971 of Judith Jarvis Thomson’s article “A Defense of Abortion,” in which she argued that abortion is permissible even if one assumes, for the sake of argument, that human embryos and fetuses have a right to life. Thus we have one of the great divides in the philosophical discussion of abortion: Is the moral status of the developing human generally decisive with regard to the moral permissibility of abortion or not? -/- 1.2 The Moral Status of the Developing Human: Thomson and Boonin Thomson’s article evoked many critical responses, along with some defenses, which I have described elsewhere (2013; “Thomson’s Attempt to Defend Abortion in General”). Crucial, however, is David Boonin’s defense (2003), which contains responses to all of the important objections directed against the attempt to show that one can defend abortion while granting that human embryos and fetuses have a right to life fully on a par with that of normal adult human beings. -/- Boonin’s impressive efforts notwithstanding, I do not think that this way of defending an extreme permissibility view is successful. The crucial issue is whether it is morally permissible intentionally to bring into existence an entity with a right to life in a situation where one knows that it will not survive without one’s assistance, and then to refrain from providing that assistance. An especially forceful way of arguing that this is not permissible is found in an article by Richard Langer (1993, 351-2), who argues that if this were permissible, it would follow not only that abortion was justified, but also that it is permissible to allow one’s children to die, some years after birth, simply because one no longer wishes to care for them. -/- 1.3 Moderate Views Moderate positions on abortion raise a number of issues that, for reasons of space, I cannot address here. Some of these depend on the issue of the moral status of the developing human, and defending a moderate view requires showing that both extreme anti-abortion and extreme moral permissibility views concerning the moral status of humans before birth are incorrect. I have argued elsewhere (1983, 285-302, and 2009, 59-63) that the prospects of doing this are not promising. -/- As regards permissibility in the case of rape, everything depends upon whether, as Thomson contends (1971), there is no obligation to be a good Samaritan, rather than merely a minimally decent one, and so no obligation for a woman to remain pregnant to save the life of a being that she was not responsible for bringing into existence. Finally, on the one hand, in cases where the woman will die if an abortion is not performed, virtually all moral philosophers, with the exception of those who embrace the moral view advanced by the Catholic Church in encyclicals by Pope Pius XI (1930) and Pope Paul VI (1968), agree that abortion is morally permissible, while, on the other hand, if the situation is one where there is only some risk that the woman will die if an abortion is not performed, or where the threat is not to the woman’s life, but only to her health, then the situation does seem clear-cut if one assumes that the embryo or fetus has a right to life. -/- 1.4 Extreme Anti-Abortion Views Very different arguments are offered for the view that abortion is in itself never permissible. First of all, in popular discussions, appeal is frequently made to the mere fact of membership in the biologically defined species Homo sapiens, but among those who are philosophically knowledgeable, this line of argument is almost invariably rejected, for reasons that I have set out elsewhere (Tooley, 2009, 21-35). -/- Secondly, appeal is also made to the idea that humans have immaterial minds, or souls – for example, by Stephen Schwartz (1990), J. P. Moreland and Scott B. Rae (2000), Norman Ford (2002), and Francis J. Beckwith, (2005). The postulation of immaterial minds or souls is, however, open to strong objections, since there is excellent evidence that human psychological powers have their categorical bases in neural structures, rather than in an immaterial substance (Tooley, 2009, 15-19). In addition, the postulation of an immaterial soul, conceived of along Thomistic lines, is on a collision course with biology, since such an immaterial soul is held to govern a human’s life processes and biological development. -/- Thirdly, there is the ‘substantial identity’ argument, advanced for example by Patrick Lee (2004), and which claims that an entity possesses a right to life by virtue of the type of substance it is. This view is exposed to a number of strong objections, however, among them the fact that it leads to the unacceptable consequence that a human that has suffered upper brain death still has a right to life (Tooley, 2009, 51-9). -/- The upshot is that most philosophers do not find any of the preceding three lines of argument for an extreme anti-abortion position promising. The focus, accordingly, has been elsewhere – namely, on arguments claiming that human embryos and fetuses have serious moral status, or a right to life, because they have the potentiality for developing those psychological capacities – for thought, self-consciousness, rationality, and so on – that seem clearly relevant to a being’s moral status. -/- In what follows, then, I shall confine my discussion to what seems to me the most crucial issue bearing upon the moral status of abortion, namely, that between, on the one hand, a potentiality account of moral status, and, on the other, the type of approach most commonly appealed to in support of an extreme permissibility position on abortion, namely, a personhood account of the right to life. -/- One of the earliest defenders of the view that potentialities give something a right to life was Jim Stone in his article, “Why Potentiality Matters,” where Stone argues for the conclusion, “we have a prima facie duty not to deprive them of the conscious goods which it is their nature to realize” (1987, 821). Stone’s discussion, however, attracted much less attention than an article published two years later by Don Marquis, entitled “Why Abortion is Immoral.” The latter is one of the most interesting articles on abortion, as well as one of the most discussed––and deservedly so. In what follows, then, I shall focus upon it. -/- My discussion is organized as follows. In section 2, I summarize Marquis’s account of the wrongness of killing. Then, in section 3, I set out an alternative account, one in which the concept of a neo-Lockean person is central. Sections 4, 5, and 6 are then devoted to criticisms of Marquis’s approach, all of which also support the alternative, rights-based, neo-Lockean personhood account. (shrink)

The Islamic philosophical, mystical, and theological sub‐traditions have each made characteristic assumptions about the human person, including an incorporation of substance dualism in distinctive manners. Advances in the brain sciences of the last half century, which include a widespread acceptance of death as the end of essential brain function, require the abandonment of dualistic notions of the human person that assert an immaterial and incorporeal soul separate from a body. In this article, I trace classical Islamic notions (...) of death and the soul, the modern definition of death as “brain death,” and some contemporary Islamic responses to this definition. I argue that a completely naturalistic account of human personhood in the Islamic tradition is the best and most viable alternative for the future. This corporeal monistic account of Muslim personhood as embodied consciousness incorporates the insights of pre‐modern Muslim thinkers yet rehabilitates their characteristic mistakes and thus has the advantages of neuroscientific validity and modern relevance in trans‐cultural ethical discourse; it also helps to alleviate organ shortages in countries with majority Muslim populations, a serious ethical impasse of recent years. (shrink)

The concept of brain death was recently described as being “at once well settled and persistently unresolved.” Every day, in the United States and around the world, physicians diagnose patients as brain dead, and then proceed to transplant organs from these patients into others in need. Yet as well settled as this practice has become, brain death continues to be the focus of controversy, with two journals in bioethics dedicating major sections to the topic within (...) the last two years.By way of background, the Uniform Determination of Death Act states that “[a]n individual who has sustained either: irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.” In other words, death can be defined by either cardiorespiratory or neurological criteria, with “brain death” representing the loss of all brain function. This standard, or closely related variants, has become the accepted approach throughout the United States and in many parts of the world. (shrink)

The publicity surrounding the recent McMath and Muñoz cases has rekindled public interest in brain death: the familiar term for human death determination by showing the irreversible cessation of clinical brain functions. The concept of brain death was developed decades ago to permit withdrawal of therapy in hopeless cases and to permit organ donation. It has become widely established medical practice, and laws permit it in all U.S. jurisdictions. Brain death has a (...) biophilosophical justification as a standard for determining human death but remains poorly understood by the public and by health professionals. The current controversies over brain death are largely restricted to the academy, but some practitioners express ambivalence over whether brain death is equivalent to human death. Brain death remains an accepted and sound concept, but more work is necessary to establish its biophilosophical justification and to educate health professionals and the public. (shrink)

A “universalist” policy on brain death holds that brain death is death, and neurologic criteria for death determination are rightly applied to all, without exemptions or opt outs. This essay argues that advocates of a universalist brain death policy defend the same sort of coercive control of end-of-life decision-making as “pro-life” advocates seek to achieve for reproductive decision-making, and both are grounded in an illiberal political philosophy. Those who recognize the serious flaws (...) of this kind of public policy with respect to abortion must apply the same logic to brain death. (shrink)

I develop and refine an argument for the total brain death criterion of death previously advanced by Germain Grisez and me: A human being is essentially a rational animal, and so must have a radical capacity for rational operations. For rational animals, conscious sensation is a pre-requisite for rational operation. But total brain death results in the loss of the radical capacity for conscious sensation, and so also for rational operations. Hence, total brain (...) class='Hi'>death constitutes a substantial change—the ceasing to be of the human being. Objections are considered, including the objection that total brain death need not result in the loss of capacity for sensation, and that damage to the brain less than total brain death can result in loss of capacity for rational operations. (shrink)

This book shifted the Japanese debate on brain death from "brain-centered analysis" to "human relationship oriented analysis." I defined that brain death means a form of human relationships between a comatose patient and the people surrounding him/her in the ICU. I paid special attention to the emotional aspect and the inner reality of the family members of a brain dead person, because sometimes the family members at the bedside, touching the warm body of the (...) patient, express the feeling that the brain dead person still continues to exist as a living human being. This approach, published more than 10 years ago, has deeply influenced Japanese bioethics, and would probably influence English bioethics, too. Chapter 1 deals with "brain death as a form of human relationships" theory. Published in 1989. (shrink)

McGovern, Kevin In December 2008, the US President's Council on Bioethics issued a White Paper titled 'Controversies in the Determination of Death.'1 Responding to contemporary critiques of the concept of brain death, the Council upholds the validity of this neurological standard for determining death. Significantly, it also proposes replacing the existing explanation of this standard with a new, very different rationale. As well, it argues that 'total brain failure' is a better name for this condition (...) than 'brain death.' This article summarises and then comments on this important statement. (shrink)

The determination of death by neurological criteria—“brain death”—has long been legally established as death in all U.S. jurisdictions. Moreover, the consequences of determining brain death have been clear. Except for organ donation and in a few rare and narrow cases, clinicians withdraw physiological support shortly after determining brain death. Until recently, there has been almost zero action in U.S. legislatures, courts, or agencies either to eliminate or to change the legal status of (...) brain death. Despite ongoing academic debates, the law concerning brain death has remained stable for decades. However, since the Jahi McMath case in 2013, this legal certainty has been increasingly challenged. Over the past five years, more families have been emboldened to translate their concerns into legal claims challenging traditional brain death rules. While novel, these claims are not frivolous. Therefore, it is important to understand them so that we can address them most effectively. (shrink)

Singer claims that there are two ways of challenging the fact that brain-dead patients, from whom organs are usually retrieved, are in fact biologically alive. By means of the first, the so called dead donor rule may be abandoned, opening the way to lethal organ donation. In the second, it might be posited that terms such as “life” and “death” do not have any primary biological meaning and are applicable to persons instead of organisms. This second possibility permits (...) one to acknowledge that brain-dead patients are deceased because they are irreversibly unconscious. In the commentary which follows, I will argue that Singer’s second option is preferable since it provides a higher amount of organs available for transplant, and is better suited to the meaning of “death” which occurs in ordinary language. I will also defend such a concept of death against the objections raised by Michael Nair-Collins in the article Can the brain-dead be harmed or wronged? On the moral status of brain death and its implications for organ transplantation. (shrink)

My recent article, “The challenge of brain death for the sanctity of life ethic” (Ethics & Bioethics (in Central Europe), 2018, 8 (3–4), pp. 153–165) elicited five commentaries. In this brief response, I clarify my own position in the light of some misunderstandings, and discuss whether the definition of death is best thought of as an ethical question, or as a matter of fact. I also comment on the suggestion that we should allow people to choose the (...) criteria by which they wish their own death to be determined, or their organs removed to be donated to others. (shrink)

The main goal of Brain Death and Disorders of Consciousness is to provide a suitable scientific platform to discuss all topics related to human death and coma.

This study aims to explore the multiple concepts of brain death through jurisprudence and medical innovation. The study focuses on understanding the interaction between these concepts and analyzing the challenges and problems they face. To analyze the multiple concepts of brain death and provide a comprehensive and balanced understanding of this issue from different perspectives. And also to know the ethical and legal challenges associated with determining brain death. The study included the jurisprudential, medical, (...) ethical and legal community interested in the topic of brain death. The study followed a multidimensional approach and is guided by the methodology of literature review, comparative analysis, and applied analysis of medical trials. Previous studies and research were reviewed, including jurisprudential, medical, ethical and legal studies. The results showed a significant discrepancy in understanding and application between the jurisprudential concept of death and recent medical developments to address the ethical and legal challenges associated with determining brain death. The recommendations and directions for health and legal policies were to achieve harmony between the jurisprudential, medical and ethical dimensions of the issue of brain death. The research indicates the need for further research and analysis to better understand the interaction between the multiple concepts of brain death and to apply comprehensive and balanced solutions. (shrink)

McGovern, Kevin In recent years, some speakers at Catholic conferences and a few articles on Catholic websites and in Catholic newspapers have claimed that brain death is not really death. Some Catholics may be confused by this - particularly if they are asked to agree to the removal of mechanical ventilation or the procurement of organs from a relative or friend who has been declared brain dead. At the same time, these claims might damage the reputation (...) of the Church within the scientific and health care communities. This article reviews what brain death is, and then details Catholic investigations and statements about this concept. (shrink)

In this paper, I defend brain death as a criterion for determining death against objections raised by Don Marquis, Michael Nair-Collins, Doyen Nguyen, and Laura Specker Sullivan. I argue that any definition of death for beings like us relies on some sortal concept by which we are individuated and identified and that the choice of that concept in a practical context is not determined by strictly biological considerations but involves metaphysical, moral, social, and cultural considerations. This (...) view supports acceptance of a more pluralistic legal definition of death as well as acceptance of brain death as death. (shrink)

Advances in transplantation have extended the life and relieved the suffering of thousands of individuals. The prospect of being able to use tissues from embryos, as well as from anencephalic newborns, offers the promise of further relief of suffering. However, these possibilities raise significant moral and public policy issues. The question arises of the extent to which those who disapprove of abortion may make use of tissues derived from abortion in order to treat serious diseases. This essay argues that, with (...) proper safeguards, such tissue can be used without cooperating in abortion. That is, even those who oppose abortion can benefit from the use of tissue procured during abortion. Questions also arise regarding the probity of maintaining a pregnancy in order to produce an anencephalic newborn whose biological existence will be maintained so as better to secure organs once death is declared. It is argued that, since no harm can be done to a being that has neither a sense of self or the capacity to feel pain, and since women have a right to forego abortions, there is no legitimate ground for opposing women's seeking meaning in their pregnancy through maximizing the opportunity of others to use the organs of their anencephalic newborn once death has been declared. Finally, it is argued that, since the capacities for sentience, a minimal condition for personhood, are never realized by an anencephalic, the entity has never been alive as a person. Therefore, there should be no opposition in principle to aborting anencephalics nor, after proper declaration, to making their organs available as one would after whole-brain death, despite the continued functioning of the brain stem. (shrink)

I defend the position argued previously by Germain Grisez and me that total brain death is a valid criterion of death on the grounds that a human being is essentially a rational animal, and a brain-dead body lacks the radical capacity for rational actions. I reply to Josef Seifert’s objection that our positions rest on a reductionist view of the human person, and to other objections concerning the inter-relation between the human soul, its powers, and functions (...) of the brain. I argue that a brain-dead body lacks the material dispositions needed for having the form or soul of a human being. (shrink)

The definition of death as “irreversible coma” was introduced in 1968 by the Harvard University Medical School. It was developed largely in diagnostic terms as the “irreversible cessation of all functions of the entire brain, including the brainstem.” In its review of brain death in 1981, The President’s Commission for the Study of Ethical Problems in Medicine argued that brain death is consonant with circulatory death because the loss of certain brain functions (...) results in the “loss of integrative unity of the organism,” leading to cardiac arrest. This picture of a unified conception of death was challenged by subsequent clinical evidence suggesting that, with proper treatment, circulatory death is not the inevitable result of brain death. Here, it is argued that, if death, in the morally relevant sense, is defined as irreversible loss of consciousness, a unitary conception of death can be maintained. However, significant theoretical and methodological obstacles remain in diagnosing irreversible loss of consciousness. (shrink)

Brain death has been accepted worldwide medically and legally as the biological state of death of the organism. Nevertheless, the literature has described persistent problems with this acceptance ever since brain death was described. Many of these problems are not widely known or properly understood by much of the medical community. Here we aim to clarify these issues, based on the two intractable problems in the brain death debates. First, the metaphysical problem: there (...) is no reason that withstands critical scrutiny to believe that BD is the state of biological death of the human organism. Second, the epistemic problem: there is no way currently to diagnose the state of BD, the irreversible loss of all brain functions, using clinical tests and ancillary tests, given potential confounders to testing. We discuss these problems and their main objections and conclude that these problems are intractable in that there has been no acceptable solution offered other than bare assertions of an ‘operational definition’ of death. We present possible ways to move forward that accept both the metaphysical problem - that BD is not biological death of the human organism - and the epistemic problem - that as currently diagnosed, BD is a devastating neurological state where recovery of sentience is very unlikely, but not a confirmed state of irreversible loss of all [critical] brain functions. We argue that the best solution is to abandon the dead donor rule, thus allowing vital organ donation from patients currently diagnosed as BD, assuming appropriate changes are made to the consent process and to laws about killing. (shrink)

It has been argued that neither the biological or the moral justifications commonly given for adoption of brain-death criteria are adequate; and that the only argument that succeeds is an ontological justification based on the fact that one's personal identity terminates with the death of one's brain. But a more satisfactory ontological approach analyzes brain death in terms of the existence of a person in connection with a body, not personal identity. The personal-existence justification (...) does not supplant the usual biological and moral arguments, but acts in concert with them. (shrink)

This special report is published in commemoration of the fiftieth anniversary of the “Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” a landmark document that proposed a new way to define death, with implications that advanced the field of organ transplantation. This remarkable success notwithstanding, the concept has raised lasting questions about what it means to be dead. Is death defined in terms of the biological failure (...) of the organism to maintain integrated functioning? Can death be declared on the basis of severe neurological injury even when biological functions remain intact? Is death essentially a social construct that can be defined in different ways, based on human judgment? These issues, and more, are discussed and debated in this report by leading experts in the field, many of whom have been engaged with this topic for decades. (shrink)

Since the 1980s, Islamic scholars and medical experts have used the tools of Islamic law to formulate ethico-legal opinions on brain death. These assessments have varied in their determinations and remain controversial. Some juridical councils such as the Organization of Islamic Conferences' Islamic Fiqh Academy (OIC-IFA) equate brain death with cardiopulmonary death, while others such as the Islamic Organization of Medical Sciences (IOMS) analogize brain death to an intermediate state between life and (...) class='Hi'>death. Still other councils have repudiated the notion entirely. Similarly, the ethico-legal assessments are not uniform in their acceptance of brain-stem or whole-brain criteria for death, and consequently their conceptualizations of, brain death. Within the medical literature, and in the statements of Muslim medical professional societies, brain death has been viewed as sanctioned by Islamic law with experts citing the aforementioned rulings. Furthermore, health policies around organ transplantation and end-of-life care within the Muslim world have been crafted with consideration of these representative religious determinations made by transnational, legally-inclusive, and multidisciplinary councils. The determinations of these councils also have bearing upon Muslim clinicians and patients who encounter the challenges of brain death at the bedside. For those searching for ‘Islamically-sanctioned’ responses that can inform their practice, both the OIC-IFA and IOMS verdicts have palpable gaps in their assessments and remain clinically ambiguous. In this paper we analyze these verdicts from the perspective of applied Islamic bioethics and raise several questions that, if answered by future juridical councils, will better meet the needs of clinicians and bioethicists. (shrink)